Thanks to the 582 of you who voted on last week’s question. Here are the results . . .

An employee comes into your office at 4:58 on a Friday afternoon and informs you that he suffers from multiple medical conditions, including “work-induced narcolepsy,” “spontaneous combustion syndrome” and “episodic cubicle-confinement hyper-grumpiness.” He demands several accommodations, including: (1) a portable I.V. hooked up to an espresso machine, (2) a fire extinguisher mounted to his head, (3) three-and-a-half weeks off each month and (4) your office. If you have time to make only one call, to whom should it be?

a. The EEOC (8%)
b. A lawyer who specializes in the ADA (57%)
c. The Job Accommodation Network (17%)
d. The employee’s physician (12%)
e. The employee’s spouse to see if he’s making all this up (7%)

The correct answer is “c”: the Job Accommodation Network.

The Job Accommodation Network (JAN) is a service dedicated to assisting employers who face difficult accommodation decisions. To contact JAN, click here, on the link (jan.wvu.edu) under the “Other Resources” section of the Blawg or call 800-526-7234.

I’ve always found JAN to be extremely helpful. In fact, on at least one occasion the EEOC has stated publicly that it is more likely to believe that an employer acted in good faith if it consulted with JAN during the accommodation process.

The best part? JAN is FREE. In our experience, $0 an hour is less than what most law firms charge.

I’m not surprised that JAN was selected as the correct answer by only 17% of our respondents. I’ve done dozens of seminars and very few people have ever given JAN as the correct answer to this question. JAN just may be the best-kept secret in the employment law universe.

Our viewers are now batting a respectable .537 (22 right, 19 wrong) on our weekly questions.

The next one will be coming your way soon. Thanks for your participation!

The EEOC has officially published its much-anticipated regulations to implement the ADA Amendments Act (ADAAA) here.

That publication opens a 60-day public comment period. After that period, the EEOC will consider the comments and then issue final regulations.

As discussed previously here on the Blawg, proposed changes include:

• prohibiting employers from considering “mitigating measures” (other than glasses or contact lenses) in determining whether a disability exists;
• including conditions that are in remission or episodic if they would limit a major life activity when active;
• limiting an employer’s ability to use uncorrected vision tests unless job-related and consistent with business necessity; and
• expanding the interpretation of the phrases “substantially limited” and “regarded as” in the definition of “disability.”

In addition, the proposed regulations expand the definition of “major life activities” covered under the law by including two non-exhaustive lists:

• the first includes activities such as “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working”;
• the second includes “major bodily functions” such as the respiratory, circulatory, cardiovascular, musculoskeletal, digestive, reproductive and immune systems, as well as others.

New regulations consistent with changes made by the ADA Amendments Act (ADAAA) are expected to be made available for public comment this week.

Click here for more info, here for FAQ from the EEOC and here for my summary of the ADAAA.

In our most recent Question of the Week, we asked you to identify your #1 employment law headache. Your top answer? Medical leave.

We’re here to help. Last week, we updated you here on all the recent FMLA changes. Now, here’s a handy summary of recent changes to the ADA via the ADA Amendments Act (ADAAA):

What is the ADAAA?

The ADAAA overturned several U.S. Supreme Court decisions that the bill’s sponsors felt too narrowly interpreted the ADA. The Act was the result of a bipartisan effort that included various prominent business groups, including the National Association of Manufacturers (NAM) and U.S. Chamber of Commerce.

What Did the ADAAA Change?

Here are the highlights:

• Mitigating measures. One of the biggest changes was the rejection of Supreme Court cases requiring “mitigating measures” to be taken into account in determining whether an individual has a disability.  Under the ADAAA, technology, equipment, devices and other similar aids would no longer be part of the equation.  Notable exceptions:  glasses and contact lenses could still be considered.

• Remission.  A condition that is in remission or episodic qualifies as a disability if it would substantially limit a major life activity when active.

• “Substantially Limits” Loosened. The ADAAA loosened the definition of “substantially limits” by rejecting a Supreme Court ruling that the phrase should be considered a “demanding standard” and EEOC guidance that it should be defined as “significantly restricted.”

• “Major Life Activities” Expanded. The ADAAA provides specific examples of “major life activities,” including “major bodily functions” such as “immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”

• “Regarded As” Narrowed. The ADAAA excludes from ”regarded as” claims minor/transitory conditions lasting six months or less.

Yikes. I’m Confused. Whom Should I Call?

When it comes to ADA issues (especially accommodations), your first call should always, always, always be to the Job Accommodation Network (JAN). JAN is a FREE service that helps employers address disability-related issues proactively and reasonably. Click here to visit JAN’s official site.

Employment laws can be exceedingly difficult to administer — especially when they change approximately every 3.8 seconds as they have so far this year.

To help us ensure that we’re giving you the information you need, we decided to ask you to identify the absolute #1 most difficult area of employment law.

We got a record number of votes. Leading the pack with 28% was medical issues (ADA, FMLA, etc.). Number two with 20% was litigation (claims, charges, depositions, lawsuits, etc.).

Here are the full results:

1. Medical issues (ADA, FMLA, etc.): 28%
2. Litigation (claims, charges, depositions, lawsuits, etc.): 20%
3. COBRA: 12%
4. Union relations: 10%
5. RIFs/terminations: 9%
6. Immigration (I-9s, visas, etc.): 7%
7. Wage and hour (FLSA, overtime, exemptions, etc.): 6%
8. Social networking (Facebook, Twitter, etc.): 5%
9. Non-compete/non-disclosure issues: 3%

This shows a dramatic shift from prior similar polls we’ve conducted. In the past, RIFs/terminations has always been the #1 response. Medical issues and litigation have typically been in the middle of the pack. It’s not surprising that those two have shot to the top, given (1) the sweeping changes made to the ADA and FMLA earlier this year and (2) the recent dramatic rise in litigation.

We’ll use these results to guide the content we create. As always, thanks for expressing yourselves!

Employers who have a policy that denies overtime to employees on light duty might want to think about changing that policy.

United Airlines agreed to settle a disability discrimination suit based on such a policy for $850,000, according to the EEOC. The EEOC asserted that United’s policy had an adverse impact on employees with disabilities because those workers are more likely to be assigned light duty.

Samuel Chetcuti, the lead plaintiff in the case, suffers from epilepsy. He was under medical restrictions that prevented him from operating heavy machinery but didn’t limit the number of hours he could work. Chetcuti was given light duty for his regular hours but then United barred him from working overtime even though his doctor had cleared it.

EEOC attorney William Tamayo said: “This blanket policy barring employees working with restrictions from overtime work had a disproportionate impact on workers with disabilities. It runs counter to the ADA’s goal that each employee be evaluated individually on whether they can get the job done, with or without an accommodation.”

Added EEOC District Director Michael Baldonado: “Disability does not mean inability. The ADA encourages us all to focus on opening doors to all a worker can do and discourages the closing of doors through restrictive stereotypes about disabilities, such as what you may think that person can do.”

As discussed here on the Blawg, the President recently signed a major overhaul of the Americans with Disabilities Act (ADA), entitled the ADA Amendments Act (ADAAA).

Last week’s question was designed to help you prepare for the changes.  Here’s the question we asked, along with your responses . . .

Which of the following is NOT true about the ADAAA?

a.  It will reverse several key U.S. Supreme Court decisions (12%)
b.  It will expand the definition of “disability” to include more conditions (7%)
c.  It will require employers to provide accommodations to more employees (10%)
d.  It will apply to all employers (46%)
e.  It will expand and specifically list “major life activities” covered by the law (10%)
f.   It will prohibit consideration of “mitigating measures” (other than glasses and contact lenses) in determining whether someone is disabled (15%)

As expected, President Bush signed the ADA Amendments Act (ADAAA) into law.

Click here for an overview of what is arguably the biggest change in employment law thus far this century.  The law becomes effective January 1, 2009.

Yesterday, the EEOC issued a comprehensive set of FAQs addressing how the Americans with Disabilities Act (ADA) applies to employee performance and conduct. 

What do the FAQs address?

Issues covered include:

• performance and conduct standards
• seeking medical information
• attendance issues
• dress codes
• alcoholism and drug use
• confidentiality

Why did the EEOC issue the FAQs?

“The EEOC continues to receive numerous questions on these topics from employers and from individuals with disabilities,” said EEOC Chair Naomi Earp, “indicating that there is still a high level of uncertainty about how the ADA affects these fundamental personnel issues.” 

According to the EEOC’s press release:  ”The new guide makes clear that employers can apply the same performance standards to all employees, including those with disabilities, and emphasizes that the ADA does not affect an employer’s right to hold all employees to basic conduct standards.  At the same time, however, employers must make reasonable accommodations that enable individuals with disabilities to meet performance and conduct standards.”

What should employers do?

Click here to see all the FAQs.  The recommendation’s pretty simple:  read ‘em and apply ‘em in your workplace asap.

As we discussed briefly on Friday, the answer to the above question is “yes,” according to a pair of recent federal court decisions.

The federal appeals court for the District of Columbia ruled that sexual relations and sleeping constitute “major life activities” for the purpose of determining whether an employee is “disabled” under the law.  (Adams v. Rice, No. 07-5101; Desmond v. Mukasey, No. 07-5139)

The Test

An employee is “disabled” if he or she has a physical or mental impairment that “substantially limits one or more major life activities.”  Major life activities previously identified by courts include breathing, seeing, hearing, sitting, standing, walking, learning, caring for oneself, performing manual tasks and working, among other things.

Sex?

Kathy Adams filed a lawsuit claiming that the government denied her employment because she was a breast cancer survivor.  She alleged that her condition substantially limited her ability to engage in the major life activity of sexual relations. 

The lower court rejected Adams’ contention, concluding that sexual relations is not a major life activity.  Adams appealed. 

The appeals court reversed.  It relied on an earlier Supreme Court decision holding that “[r]eproduction and the sexual dynamics surrounding it are central to the life process itself.”  Accordingly, the appeals court reached the “self-evident conclusion” that sexual relations could qualify as a “major life activity.”

Sleep?

Martin Desmond also sued the government, alleging that it discriminated against him based on his post traumatic stress disorder which impaired his ability to sleep.  Like the Adams case, the lower court concluded that no reasonable jury could find in Desmond’s favor. 

The appeals court reversed.  Citing various sources ranging all the way from Macbeth to biology textbooks, the court concluded that sleep is “central to the life process itself” and thus unquestionably a “major life activity” under the law. 

The court also declined to require Desmond to prove that his sleep deprivation negatively impacted his work performance.  The court stated:  “neither the statute nor the regulations interpreting it include any indication that the major life activity of sleeping is substantially limited only if some other life activity is also limited.”

What’s Next?

Both cases now return to the lower court.  The juries will then decide whether Adams is substantially limited in her ability to engage in sex and whether Desmond is substantially limited in his ability to sleep.  If the plaintiffs pass those tests, then the juries will decide if the government discriminated against them.

For now, these decisions apply only in the D.C. Circuit.  However, it’s not inconceivable that other courts could follow suit.  In fact, the Ninth Circuit has already found sex to be a major life activity and several other circuits have found sleep to be included as well.

Stay tuned for more.